Libby’s jail sentence miscarriage of justice

June 9, 2007

Editorial

As one of the major behind-the-scenes architects — from his position as Vice President Cheney’s chief of staff — of the lamentable war in Iraq, I. Lewis “Scooter” Libby has a great deal to answer for, whether in the depths of his conscience or in the annals of history. For the crimes of which he was convicted in March, however, it is outrageous that he has been sentenced to 30 months in jail and a fine of $250,000.

We stand behind our position when Libby was charged and standing trial — that it was an abuse of prosecutorial discretion to charge him with perjury and obstructing justice.

A jury did find that he lied and we are prepared to believe that he did. But he lied about an act that special prosecutor Patrick Fitzgerald was never able to charge as a crime and which — as Fitzgerald knew early on but concealed from the public — was committed not by Libby but by somebody else.

To recap: Robert Novak in summer 2003 published the fact that administration critic Joseph Wilson’s wife, Valerie Plame, worked for the CIA. Whether she was an undercover agent or not, which could have made a knowing revelation of her identity a crime under the Intelligence Identities Protection Act, has still not been revealed officially, though it seems to have been informally confirmed that at least she was at some time or another.

However, Patrick Fitzgerald knew early on that former Secretary of State Richard Armitage was the one who revealed her identity to Novak and he never charged Armitage — or anybody else — with violating that law. Nor did he charge anybody with violating the Espionage Act, which could also have come into play.

If Libby lied to investigators, he lied about a non-crime. It might have been appropriate for him to be fired or to face some penalties. But 30 months in jail is out of line.

Fitzgerald, in arguing for such a stiff penalty, in essence told the judge he wanted Libby sentenced for the underlying crime with which he had never been charged rather than the process crimes of which he was convicted, writing that the grand jury “obtained substantial evidence indicating that one or both of the statutes may have been violated.”

The fact that he brought no such charges seemed to fade into irrelevancy.

Federal Judge Reggie Walton, in imposing a sentence twice as long as recommended by probation officials because “people who occupy these types of positions … have a special obligation to not do anything that might create a problem.” We respect his concern about the importance of high public officials being truthful, but the sentence is outrageously out of proportion to the offense.

We have not so argued before, but President Bush should pardon Scooter Libby immediately and end this politically motivated farce.